Center for American Progress Women's Initiative Issues Public Comment to 3 Agencies

TARGETED NEWS SERVICE (founded 2004) features non-partisan 'edited journalism' news briefs and information for news organizations, public policy groups and individuals; as well as 'gathered' public policy information, including news releases, reports, speeches. For more information contact MYRON STRUCK, editor, [email protected], Springfield, Virginia; 703/304-1897; https://targetednews.com

WASHINGTON, Dec. 12 -- Kierra B. Jones, Senior Policy Analyst, Women's Initiative at the Center for American Progress, has issued a public comment to three agencies. The comment was written on Dec. 4, 2023, and posted on Dec. 7, 2023.

The comment, on Docket No. EBSA-2023-0013-0001, was sent to HHS Secretary Xavier Becerra; Acting Labor Secretary Julie A. Su; and Treasury Secretary Janet Yellen.

Here are excerpts:

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The Center for American Progress (CAP) is pleased to submit this comment in response to the request for information (RFI) regarding the application of the preventive services requirements under section 2713 of the Public Health Services Act to over-the-counter (OTC) preventive services available without a prescription by a health care provider.1 CAP appreciates the Biden administration's commitments to safeguard2 and strengthen3 access to affordable, reproductive health care and family planning services, alongside its push to address health equity issues and mitigate harms. CAP is uniquely qualified and grateful for the opportunity to respond to this RFI, as an organization that is dedicated to improving the lives of all Americans through bold, progressive ideas, as well as strong leadership and concerted action.4 We have well-established and interconnected teams of policy experts and advocates who have spearheaded and published research on ways to expand health coverage, strengthen access to care, and improve affordability to ensure women have access to comprehensive reproductive health services. With this expertise, we welcome the opportunity to provide input on the effects of requiring insurers to cover OTC preventive services, and particularly the ways this change could be instrumental to health equity in coverage of OTC birth control without cost-sharing and without a prescription.

I. Women in the U.S. overwhelmingly need and support improved access to OTC contraception.

With the overturning of Roe v. Wade and continued legislative5 and judicial6 attacks on reproductive health care, there is an urgent need to improve and expand access to contraceptive care, which is an essential preventive service. Now is an opportune time for the Biden administration to take action to reduce barriers-in particular, barriers faced by young people,7 women with disabilities,8 women with low incomes,9 women living in rural areas and areas with healthcare provider shortages,10 and women of color11-by fully implementing the preventive service requirement and requiring health plans to cover OTC contraception without a prescription and without cost sharing. Affordable access to birth control can mean the difference between people getting their desired contraceptive method and going without.12 This has long lasting and pervasive effects on women's and all people's ability to meet their family planning goals and the social, economic, professional, and health benefits that come with that.13

Nearly all women have used some form of contraception in their lifetime.14 It is imperative that the Biden administration use this information to inform its decision making on ways to improve access for such a large portion of the population. A majority of women are in favor of making birth control available OTC. A 2011 nationally representative sample of U.S. women ages 18 to 44 found that 62 percent said they were "strongly or somewhat in favor" of oral contraceptives being made available OTC,15 and two-thirds of voters believe that the FDA should "prioritize the sale of birth control pills over the counter."16 Additionally, more than one-third (39 percent) of adult women and nearly one-third (29 percent) of teens say they would be likely to use the progestin-only OTC pill, especially if covered by insurance,17 indicating that no-cost insurance coverage of OTC contraceptives could increase utilization. Research shows that most adults are unwilling or unable to pay more than $15 per month for OTC contraception, and this number is even less for adolescents, at $10 per month.18 Taken together, these studies demonstrate that coverage of OTC contraceptives is not only a priority for many women, but also that this policy change already has the potential to address core concerns around accessibility and affordability.

II. Current prescription requirements create barriers to care.

Prescription requirements create barriers to accessing birth control and can result in people going without needed care. Under current guidance, insurers can still require a prescription for OTC birth control methods to indicate "medical necessity".19 When insurers impose these requirements in order to provide coverage for medications, many people are limited in their ability to obtain OTC drugs. Research shows that nearly one-third (29 percent) of women who have ever tried to get a prescription for contraception have faced barriers when trying to obtain or refill a prescription for birth control.20 For example, patients face logistical burdens and other barriers to obtain a prescription such as having to schedule appointments, taking time off of work or school, arranging and paying for transportation, taking time to travel to an appointment, and planning for child care in their absence.21 These barriers are magnified for some groups, such as young people,22 women with disabilities,23 women with low incomes,24 women living in rural areas and areas with healthcare provider shortages,25 and women of color.26 Moreover, women, especially women of color, are more likely to suffer discrimination, abuse, and stigma in health care.27 Thirty-three percent of Indigenous women, 25 percent of Hispanic women, and 23 percent of Black women report mistreatment in healthcare.28 The need for a prescription has the potential to exacerbate this stigma, discrimination, and mistreatment experienced in the healthcare system. While OTC access to contraceptives helps alleviate some of these barriers, a prescription requirement still puts up medically unnecessary roadblocks.

III. Out-of-pocket costs create financial barriers to care.

Any type of cost-sharing can be prohibitive to families with low incomes. Surveys estimate that 6 in 10 Americans are living paycheck to paycheck, most of whom do not have enough savings to cover an emergency or unexpected medical expense.29 Indeed, out-of-pocket costs--including copayments, coinsurance, and deductibles-- create affordability barriers to contraceptive care and can make family planning and preventive services unattainable for some.30 Prohibitive cost can mean millions of women not getting access to their preferred methods of care, and thus, not having adequate resources to plan whether, how, and when to have children and to meet their family planning goals. Cost of any kind is a key barrier to advancing reproductive and bodily autonomy and closing gaps in contraceptive and health equity.31

A recent study of three geographically diverse states32 found that nearly 20 percent of women reported having trouble or experiencing delays "in obtaining their preferred method of birth control in the past year, primarily as a result of cost and insurance-related barriers."33 Further, 25 percent of low-income women using contraception would prefer to use another method if cost was not a barrier; and 40 percent of nonusers of contraceptives report that they would prefer to use a method if cost was not a barrier-demonstrating the importance of addressing cost-related barriers to care and making it more accessible.34 High costs can also prevent young people from being able to afford birth control. In fact, if priced at more than $10, potential consumers of the OTC progestin-only pill decreased to under 60 percent.35 Coverage of OTC contraceptives without cost-sharing would make birth control more affordable to young people, people with low-incomes, and other populations who otherwise would not be able to access this product due to cost barriers.

IV. Coverage of OTC preventive items is an important step toward advancing health equity.

Access to contraception is an essential preventive service and a core component of advancing bodily and reproductive autonomy, but many people are confronted with pervasive barriers when trying to access contraception. In particular, lack of insurance coverage for OTC contraception is likely to disproportionately affect people who already face barriers due to systemic inequities that are driven by systems of oppression, including systemic racism, historic community disinvestment, and long histories of reproductive coercion and unethical medical practices. These barriers to birth control -- and health care overall -- are often exacerbated for people of color and Indigenous people, young people, immigrants, LGBTQI+ people, low-income people, and people with disabilities. Black or African American, Asian American, Native Hawaiian or Pacific Islander, Indigenous, and Latina/Latinx or Spanish origin people report experiencing at least one barrier to accessing contraception in the past year.36 For millions of women, the requirement to get a prescription to cover OTC contraception, or pay out-of-pocket in lieu of a prescription, makes the OTC method out of reach. People who struggle to access prescription contraception because of the financial costs of seeing a provider (e.g., taking time off work or paying for child care) similarly may struggle to afford paying out-of-pocket for an OTC method.

V. Coverage of OTC preventive items and services could expand access and help women meet their family planning needs.

The advancement of contraception and family planning services has helped reduce unwanted pregnancies and improve maternal and child health outcomes. Additionally, decades of research shows that, with improved access to safe, effective, and affordable contraception, women experience greater educational attainment, increased workforce participation, and higher incomes. Requiring coverage for OTC contraception will further support people in consistently and effectively using birth control and advance positive health outcomes. The oral contraceptive pill is the most common form of reversible contraception used in the United States,37 and as such, making it available OTC could make substantial improvements for on the ground access.

VI. Status of OTC coverage of contraceptives

As of September 2023, six states40 have passed laws requiring state-regulated private insurers to cover OTC contraception without a prescription and without cost-sharing.41 Additionally, seven states use state-only funds to cover certain OTC contraceptives for Medicaid enrollees.42 In states where that coverage exists for OTC contraception, research shows that billing protocols for OTC contraception vary widely by health insurance plan and within state Medicaid programs, leading to confusion for pharmacists.43 And while state actions to increase access to OTC contraception without cost-sharing and without a prescription can be meaningful for people with private insurance, the reach of these actions is limited, because the majority of covered workers with employer-sponsored health insurance are enrolled in self-funded employer plans, which are not subject to state insurance requirements.44 In fact, in absence of federal intervention, employers are unlikely to cover OTC contraception willingly.45 Federal requirements for insurers to cover OTC contraceptives without cost-sharing and without a prescription would help close the gaps that exist between states. Uniform coverage of OTC preventive services would help prevent confusion about coverage requirements and establish outreach to consumers, health plans, retailers, and providers.

VII. Conclusion

The Biden administration has the opportunity to address persistent inequities in the health care system, and contraceptive care specifically, by ensuring that the first-ever OTC pill-and OTC contraceptives broadly-are available to all who need them.

The growing availability of OTC contraceptive options has the potential to significantly reduce gaps in contraceptive access. Although birth control is a covered preventive service under the Affordable Care Act, health plans typically require a prescription to obtain coverage for most OTC products, including birth control.46 For millions of women, the requirement to get a prescription to cover OTC contraception, or pay out-of-pocket in lieu of a prescription, makes the OTC method out of reach. People who struggle to access prescription contraception because of the financial costs of seeing a provider (e.g., taking time off work or paying for child care) similarly may struggle to afford paying out-of-pocket for an OTC method.

The Departments of Health and Human Services (HHS), Labor, and the Treasury have clear authority47 under the ACA's preventive services provision to require private health plans and Medicaid plans in expansion states to cover OTC contraceptives without cost-sharing and without a prescription. We ask that the Departments issue clear guidance about the ACA's requirements and specifically about coverage of OTC preventive products and services to all stakeholders, including private health plans, Medicaid managed care plans, pharmacy benefit managers, state insurance regulators, state Medicaid agencies, pharmacies, retailers, and consumers. Similarly, the Departments must work to ensure that all stakeholders understand how to make OTC coverage work in practice. Moreover, they must monitor compliance to ensure that private and Medicaid health plans follow the revised requirements, impose appropriate corrective actions and penalties for plans that fail to do so, and work with state regulators to coordinate oversight and enforcement across the entire health system. We also strongly encourage further federal action to extend those requirements to self-insured health plans.

We are grateful for the opportunity to provide information on the importance of this option for expanding the availability of OTC preventive services, which is vital to the health and wellbeing of women and families across the country. If you have any questions about our comments, please contact Kierra Jones at [email protected].

Sincerely,

Kierra B. Jones

Senior Policy Analyst

Women's Initiative at the Center for American Progress

[email protected]

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Original text and footnotes here: https://downloads.regulations.gov/EBSA-2023-0013-0301/attachment_1.docx

TARGETED NEWS SERVICE (founded 2004) features non-partisan 'edited journalism' news briefs and information for news organizations, public policy groups and individuals; as well as 'gathered' public policy information, including news releases, reports, speeches. For more information contact MYRON STRUCK, editor, [email protected], Springfield, Virginia; 703/304-1897; https://targetednews.com